Odyssey Marine Article...

[Panfilo]

Diggerww:
Regarding the affirmation that the Spanish crown paid the private owners of the cargo aboard the Merceds is, as Jeff has stated, totally false. The Crown did indeed on at least three occasions publish invitations for the claimants to come forward and present their claims which was indeed done by some of the more than 300 consigners of the cargo. None were ever paid, there is no single document presented by the Spanish government that proves a single claimant was ever compensated for their loss. Regarding don Diego de Alvear, he was indeed indemnified by the British for 50% of his losses. In King George III Royal Decree dated August the 16th 1805 one can read:
“…Diego de Alvear…second in command of the squadron of Spanish frigates…captured by the Indefatigable, Medusa, Lively and Amphion and that he was so very unfortunate as to lose his wife, seven children, and a nephew with five negro servants as also his valuable baggage and gold and silver to the amount of fifty thousand hard dollars (or twelve thousand pounds sterling, which can be proved by original documents from the Custom House at Buenos Ayres, were shipped on board the Mercedes)…
…we do hearby direct, authorize and require you to pay onto the said D. Diego de Alvear or to his agent law fully appointed , to receive the same, the said sum of six thousand pounds…on account of his loss aforesaid…”The Spanish crown never paid Alvear any compensation for his loss nor did the British pay for the other 50%.
Panfilo

 

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[MORE AND BEYOND OSSY]

Didn't the other Spanish frigates captured by the British, with full cargo's get SOLD !! for the gain of the British.
The Ships belonged to the Spanish State including the Mercedes. Panfilo did Spain get any compensation
Spain was at this time, not at war with England.
By the crown publishing for claimants, On three occasions, this shows accountability and that consigned freight was under the
control of the Spanish state.
I would use this argument in court, even if they were never paid. The offer was made, three times !!!
Panfilo, I'm sure it was published by the English, what goods and what they were sold for, Including the ships.
Ossy

 

[Panfilo]

If I’m reading you right Ossy you have the issued confused: the main point being debated in the courts regarding the Mercedes is whether she is covered by Sovereign Immunity or not. The Law of the Sea Convention requires that if she was a State vessel she had to be “on an exclusively military non commercial mission” at the time of the sinking. The debate is not whether the Mercedes was a State ship or not but whether transporting passengers (women and children), alpaca wool, cascarilla wood and 700,000 coins that belonged to private commerce is an exclusive military mission. That is the heart of the legal battle.
The other issue is whether the owners of the private cargo onboard were indemnified by the Spanish Crown or not, not whether the offering was made. If I owe you a hundred dollars and publish a notice in the newspaper saying I will someday pay you but never do, do I still owe you the hundred dollars? I certainly do at least in my view of things. Spain never paid the owners or their descendants, Spain’s lawyers never presented a single receipt because none exist yet they have said that the owners of the cargo were indeed indemnified.
Panfilo

 

[Panfilo]

Ossy, I forgot:
Regarding your other question, in 1809 Spain received 9 million pounds from the British to finance a provisional Junta in Andalucia at which time Spain asked if any of that money was to be destined towards the indemnification of the claimants aboard Bustamante’s fleet (where the Mercedes was a part of) and Britain said no. Spain immediately filed a claim requesting compensation for the damages resulting from the sinking of the Mercedes and the capture of the other Bustamante ships in 1804 and was refused by Britain. Many years later, in 1869 during a Spanish revolution a new Constitution was passed that included a clause that allowed compensation for lossed as those incurred by the Bustamante fleet yet no claims were ever honored.
Panfilo

 

[MORE AND BEYOND OSSY]

Panfilo, I still have no doubts that the Mercedes was, and her remains are still Sovereign!
I was looking at a different angle. Since you keep ignoring the facts that it was under navel commands orders.
and under the control of navel personnel not private seaman.
Since the goods did not reach port, who had control
Ossy

 

[Panfilo]

Ossy:
I , on the other hand, don’t believe the Mercedes was on a military non commercial mission therefore, in my modest view, she does not enjoy of the benefits of that classification. On the premise though that she would have been on a military mission and that she indeed has Sovereign Immunity, the private cargo surely is not blanketed by the ships unique status. In other words if the ship were to be determined to be Sovereign Immune, the private cargo is not.
You might want to read Article 236 of the Law of the Sea Convention and clarify any doubts you might have on this as the fact that it was under naval command orders is not the relevant condition as is the “mission” the ship is engaged in at the sinking. We all know that most commerce during colonial Spanish reign of America was conducted in State vessels but that does not mean that they were all Immune vessels. During naval warfare, i.e. during specific naval battles the sunken vessel is and was Sovereign Immune, no doubt here. When State ships were used in commerce..that’s a different story.
We shall no doubt see what the Appeals court has to say and undoubtedly no matter who wins, the Supreme Courts views on this precedent making case.
The fact that the private goods did not reach their destination, ownership does not change by that sole fact. If you were sending your girlfriend in Paris a diamond ring and the Fed Ex plane crashes…do you lose ownership of the ring? Hardly!
Panfilo

 

[diggerww]

If I’m reading you right Ossy you have the issued confused: the main point being debated in the courts regarding the Mercedes is whether she is covered by Sovereign Immunity or not. The Law of the Sea Convention requires that if she was a State vessel she had to be “on an exclusively military non commercial mission” at the time of the sinking. ...
Panfilo

Show, with the link, where it states “on an exclusively military non commercial mission” . Perhaps if you were to go to the source documents, rather than parroting Kramer, you would be able to comprehend the situation better.

Just as you try to obfuscate the issue, stating Spain never paid the merchants. Spain was not required by the Admiralty Court to pay the Merchants, Britain was. Spain administrated on behalf of the Merchants in the Admiralty Court.

It is very well documented that Alvear was compensated in full for his loss, 30,000 pounds, so where your 'quote' of 6000 pounds came from, who knows. Here is one source http://books.google.com/books?id=L_...&resnum=5&ved=0CDYQ6AEwBA#v=onepage&q&f=false
I suppose you would be unable to find yours?

 

[mariner]

Ossy:
The fact that the private goods did not reach their destination, ownership does not change by that sole fact. If you were sending your girlfriend in Paris a diamond ring and the Fed Ex plane crashes…do you lose ownership of the ring? Hardly!
Panfilo

Panfilo,

If you elected to take out insurance on the ring, and the Insurance Company pays you out, ownership of the ring transfers to the Insurance Company.

On the issue of the need for Sovereign Vessels to be on purely non-Commercial duties, the International Convention on Salvage is absolutely clear. It is late here on the US West Coast, but I will dig out the Convention and quote the specific passage tomorrow.

Mariner

 

[diggerww]

SMCA Section 1408

(3) The term “sunken military craft” means all or any portion of—
(A) any sunken warship, naval auxiliary, or other vessel
that was owned or operated by a government on military noncommercial service when it sank;
(B) any sunken military aircraft or military spacecraft that was owned or operated by a government when it sank; and
(C) the associated contents of a craft referred to in subparagraph
(A) or (B), if title thereto has not been abandoned or transferred by the government concerned.

no "exclusively" in the law...

also note the following definition:

(1) The term “associated contents” means—
(A) the equipment, cargo, and contents of a sunken military craft that are within its debris field; and
(B) the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.

 

[jeff k]

22 Section 1605 (b) and (c) FSIA, which set out exceptions to § 1604 immunity, provide in
relevant part:

(b) A foreign state shall not be immune from the jurisdiction of the courts of the
United States in any case in which a suit in admiralty is brought to enforce a maritime
lien against a vessel or cargo of the foreign state, which maritime lien is based upon a
commercial activity of the foreign state . . . .

(c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. . . .

 

[mariner]

The International Convention on Salvage says:

1. Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles on international law unless that State decides otherwise.
__________________________________________________________________________

However, the generally recognized principles of international law are embodied in the United Nations Convention of Laws of the Sea (UNCLOS) and the issue of Sovereign Immunity is addressed in Article 96:


UNCLOS Article 96:

Article96

Immunity of ships used only on government non-commercial service

Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.
______________________________________________________________________________

I guess this is why there are so many lawyers.

Mariner

 

[jeff k]

Two years before the Mercedes sank, the King of Spain ordered the Navy to send a ship to Peru and pick up his tax money. So far, this would be considered a non-commercial activity. Before the Mercedes left Peru they realized that there was not enough cargo to make the voyage profitable. They then advertised for merchants to ship their goods and money back to Spain, so we now have commercial activity. It seems Judge Pizzo chose to ignore this fact, but I don't think the appellate court will.

 

[mariner]

Jeff,

For once I am in complete agreement with you.

Mariner

 

[diggerww]

22 Section 1605 (b) and (c) FSIA, which set out exceptions to § 1604 immunity, provide in
relevant part:

(b) A foreign state shall not be immune from the jurisdiction of the courts of the
United States in any case in which a suit in admiralty is brought to enforce a maritime
lien against a vessel or cargo of the foreign state, which maritime lien is based upon a
commercial activity of the foreign state . . . .

(c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. . . .

This is not a maritime lien

 

[Alexandre]

The International Convention on Salvage says:

1. Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles on international law unless that State decides otherwise.
__________________________________________________________________________

However, the generally recognized principles of international law are embodied in the United Nations Convention of Laws of the Sea (UNCLOS) and the issue of Sovereign Immunity is addressed in Article 96:


UNCLOS Article 96:

Article96

Immunity of ships used only on government non-commercial service

Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.
______________________________________________________________________________

I guess this is why there are so many lawyers.

Mariner

You have to use historical context here. The trouble is that you are using UNCLOS to solve an issue that occured 200 years ago.

Let's say Old Ironsides would have been sunk in 1878, near Lisbon harbour, with heavy loss of life, while coming from the Paris Exhibition, loaded with commercial cargo. Would she be okay to be salvaged today or would the US Navy claim her as a soverign ship?


http://en.wikipedia.org/wiki/USS_Constitution#Paris_Exposition

 

[mariner]

Alexandre,

I am just trying to clarify the law. In the hypothetical case that you quote, I am not sure, but I think that the wreck would not be protected by current salvage salvage laws. If you don't like the law, then work to get the law changed. Meanwhile, obey the law.

Incidentally, are you insinuating that under no circumstances should the hypothetical wreck be salvaged, or just that it should not be salvaged for profit. Don't you think it is a good thing that the Mary Rose was recovered, for example. That was a warship, and at the time she sank, she was not on commercial operations, though neither was she engaged in warfare.

Mariner

 

[Panfilo]

Diggerww:
No obfuscating here and no “parroting Kramer” (whatever that means), I am merely expressing my interpretation of International Admiralty law and how it relates to the Mercedes case based on historical facts. I don’t much like your tone and implications more so since you neither know me nor do I take kindly to the type of remarks you make. My source is stated in my post, very clearly, a Royal Decree of King George III dated August 16 1805, are you saying I made this up? What kind of people are used to dealing with? We have a saying here in Spanish: “what Peter sais of Paul sais more of Peter than it says of Paul” , I don’t know if you can comprehend this very complex thought. You might want to get a copy of don Diego de Alvear y Ponce de Leon’s granddaughter Sabina de Alvear book before you start making unsubstantiated accusations.
Now back to the real issues: you ask where does it say “on an exclusively military non commercial mission” and if you read the source I mentioned, UNCLOS in both Article 96 and 236 it stated, as Mariner has kindly transcribed “only on government non commercial service” this is very close considering I studied it in Spanish and it was a mental transcription (Utilizados unicamente para un servicio official no commercial) which I might add is 100% exact even if the translation was a bit off, the concept is identical and does make my point. In my sense of things unicamente=exclusively as opposed to multiple uses.

Mariner, I don’t understand your comment of the insurance analogy as there was no insurance on this voyage and the descendants were never paid.
Jeff, always a pleasure to share these ideas with you as you are very well documented and understand the issues without obfuscation or “parroting Kramer”.
Panfilo

 

[mariner]

Panfilo,

I was not suggesting that insurance was taken for that particular voyage.

Your question about the Fedex plane crashing with the diamond ring was more general, and I just wanted to point out that ownership of wrecks and their cargoes can change, depending on the circumstances. In lots of cases, wrecks and cargoes were covered by insurance and the insurance company became owner of the wrecks.

Mariner

 

[Salvor6]

Hey Alexandre, the French salvage team excavated the CSS Alabama off France and did not even ask the U.S. Navy for permission.

 

[trinidad]

Pánfilo, se puede decir más alto pero no más claro. Siempre es un placer leer tus aportaciones a este hilo. Y lo que es mejor, siempre se aprende algo de lo que escribes. Felicidades y gracias.